JAVED IQBAL, J.---This civil petition for leave to appeal has been preferred on behalf of Principal, Bolan Medical College, Quetta, and Chairman, Selection Committee, Bolan Medical College, Quetta, (petitioners) under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973 whereby order dated 20-12-2000 passed by learned Division Bench of Balochistan High Court, Quetta, has been assailed whereby provisional admission was granted to Abdul Ghaffar (respondent No,2) against a vacant reciprocal seat.
2. Briefly stated the facts of the case are that Miss Parveen Gul d/o Dr. Naqeebullah (respondent No,1) filed a Constitutional petition bearing No,178/2000 whereby the order dated 11-3-2000 of District Magistrate, Killah Abdullah at Chaman cancelling her local certificate was assailed. An application under section 151, C.P.C. Was also filed for suspension of the said order. An amended petition was also preferred by respondent No,1 seeking admission in the Bolan Medical College. It is noticeable that the petitioners were not impleaded as party in Original Constitutional petition bearing. No,178 of 2000 but impleaded subsequently in the amended petition. The matter was fixed for hearing on 24-5-2000 and judgment was kept reserved. No opportunity for filing objection or parawise comments was given to the petitioners. On 6-6-2000 judgment was announced and order dated 11-3-2000 passed by learned S.D.M. Was cancelled with direction to the Selection Committee that respondent No, 1 be admitted in first year M.B.,B.S. In Bolan Medical College, Quetta, for academic session 1998-1999 against one of the reserved seats of District Killa Abdullah. In pursuant to said order admission was given to Miss Parveen Gul and the order passed to this effect was communicated to her by Principal, Bolan- Medical College, Quetta, on 12-6-2000 and consequently the admission of Mr. Abdul Ghaffar was cancelled. Being aggrieved Mr.Abdul Ghaffar approached this Court by filing Civil Petition No,32-Q of 2000 which was converted into Civil Appeal No,803 of-2000 and decided on 28-6-2000 with the following observations:-- "It may be noted that in the Province of Balochistan so far no rules have been promulgated for issuance of local certificates, therefore, the District Magistrates who have entrusted the job of issuing local certificates exercise their such jurisdiction administratively, therefore, chances of misexercise of jurisdiction may be for subjective reasons cannot be overruled. Therefore, each case has to be decided with great care. It is important to note that in the case of Mir Muhammad Ibrahim (supra) originally his father Malik Muhammad Ismail Shahwani obtained a local certificate from District Kalat on the basis of which few of his relatives derived benefit but ultimately when turn of the petitioner came for admission in Bolan Medical College his candidature was objected to on the ground that he is not bona fide local of District Kalat. In view of such objection a detailed inquiry was conducted in pursuance whereof his local certificate was cancelled. The findings so recorded by the District Magistrate, however, were not disturbed by the High Court before whom a Constitutional Petition was filed as well as by this Court in the judgment noted above. Thus we are of the opinion that it would have been more appropriate for the learned Division Bench of the High Court if they have examined the precedented law available on the subject and instead of substituting finding of fact recorded by the District Magistrate on the force of argument that father and their other relatives including brothers etc. Have obtained local certificate from Tehsil Gulistan and on basis whereof they had been derivin benefits may have been examined whether order of District Magistrate is sustainable being based on inquiry report validity whereof has not been challenged by respondents. Therefore, we are of the opinion that let the matter be sent back to High Court for de novo decision taking into consideration the judgment of Mir Muhammad Ibrahim and two other reported judgments mentioned hereinabove as well as any other citation if placed from both the sides in support of their respective contentions. Because final disposal of this case at this stage will essentially cause prejudice to any one of the parties contesting for admission in Bolan Medical College, ciuetta. (Emphasis is provided), Thus keeping in view the above circumstances and concession made by learned counsel for the respondents as well as Advocate-General the petition is converted into appeal. Consequently impugned judgment dated June 6, 2000 is set aside with the observation that Constitutional Petition No,178 of 2000 filed by respondents 1 and 2 shall be deemed to be pending before the High Court for final disposal. However, it is hoped that the case shall be disposed of expeditiously by the High Court within period of 3 weeks after receipt hereof because the matter pertains to admission of students in professional college. No order as to costs." (Emphasis is provided).
3. The learned Division Bench of Balochistan High Court passed a second judgment on 10-10-2000 and the order of learned S.D.M. Cancelling the local certificate was set aside with direction that Mr. Abdul Ghaffar be adjusted/accommodated against the vacant seat reserved for foreign students.
Another order was passed on 20-9-2000 in C.P. No,532-Q of 2000 regarding the same controversy so that the earlier order could be justified. On 24-10-2000 another order was passed by the learned Division Bench whereby it was held that a seat be allocated to Abdul Ghaffar irrespective of the merits which "shall not be impediment". The petitioners were somewhat reluctant to execute the said order and resultantly contempt of Court proceedings under sections 3/4 of Contempt of Court Act, 1976, were initiated on the application submitted by Mr. Abdul Ghaffar on 10-11-2000 and finally Mr.Abdul Ghaffar was allowed admission against the reciprocal vacant seat in violation of the admission policy due to the order passed by learned Division Bench of High Court while as per merit list Miss Nida Shaheen d/o Abdul Barik was at the top of the list securing 66.74 marks.
4. We have heard at length Mr. Muhammad Ashraf Khan Tanoli, learned Advocate-General, Balochistan on behalf of petitioners who mainly contended that while passing various orders the learned Division Bench of High Court has totally ignored the observations made in the judgment dated 28-6-2000 passed by this Court and the controversy was decided without taking into consideration the factual and legal aspects which resulted in serious miscarriage of justice.
5. Mr. Kamran Murtaza, learned Advocate Supreme Court appeared on behalf of caveator/respondent No,2 and supported the impugned judgment by arguing that the learned Division Bench was competent to grant admission while exercising its Constitutional jurisdiction and no injustice has been done.
6. We have carefully examined the respective contentions as agitated on behalf of petitioners and for respondents in the light of relevant provisions of the prospectus of Bolan Medical College and prevalent policy. We have carefully perused the judgments passed by learned Division Bench dated 20-9-2000, 10-10-2000, 24-10-2000 and 20-12-2000 to appreciate the factual and legal aspects of the controversy. Let we mention here at the outset that the observations as made by this Court vide order dated 28-6-2000 were not adhered to in letter and spirit and the controversy has been dilated upon and decided in a cursory manner. We are therefore, inclined to grant leave to consider the following points:-
(i) Whether learned High Court while exercising Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can make adjustment/allocation of seats by granting admission in violation of the Prospectus of Bolan Medical College by ignoring the prevalent policy and Provincial merit list?
(ii) Whether the learned High Court has ignored, misinterpreted, misread and misconstrued the judgment dated 28-6-2000 passed by this Court setting aside the order dated 6-6-2000 passed by learned Division Bench of High Court granting admission to respondents?
(iii) Whether any seat can be allocated or adjustment made by the learned High Court in Bolan Medical College by ignoring the Provincial merit list whereby Miss Nida Shaheen was shown at the top of the list after securing 66.74 marks?
(iv) Whether the direction as contained in judgment dated 28-6-2000 passed by this Court that matter be decided within a period of three weeks could not be complied with to give undue advantage to respondents to save themselves from dislodging from the Bolan Medical College on the pretext that academic session has been partly completed?
(v) Whether the impugned judgment restoring the legal certificate of Dr. Naqeebullah is contrary to the dictum as laid down in cases titled Muhammad Ibrahim v. District Magistrate, Kalat 1989 SCMP.
185 and Tauqeer Bibi v. Government of Balochistan through Secretary, Health Department PLD 1987 Quetta 216?
(vi) Whether proper opportunity of hearing for filing parawise comments/objections has been afforded to the petitioners while making adjustment and granting admission to respondents?
(vii) Whether the contempt of Court proceedings as contemplated under Sections 3 and 4 of the Contempt of Court Act could have been initiated to get the order of admission passed by learned Division Bench implemented which prima facie was violative of the Prospectus of Bolan Medical College, prevalent policy and Provincial merit list for pressurizing a party to litigation to do a particular act as per desire of the Court if so what would be its effect in view of law laid down by this Court in PLD 1997 SC 351 and 1997 SCM R 1635 or the party concerned who is alleging that contempt has been committed in view of the well-entrenched legal position that "the power to commit for contempt is a power which had been vested in the superior Courts as an extraordinary power and has, therefore, to be exercised with great circumspection only where it is absolutely necessary in the public interest to do so?" (Zahur Ilahi v. Zulfiqar Ali Bhutto PLD 1975 SC 383).
(viii) Whether Mr. Abdul Ghaffar can be granted provisional admission against reciprocal seat in view of specific bar as contained in para.43 of the Prospectus which categorically forbids such admission?
(ix) Whether the Constitutional petition bearing No,178 of 2000 could have been amended without issuance of proper notice to the petitioners by depriving them from portraying their point of view?
(x) Whether without deciding the question of genuineness of local certificate duly cancelled by the District Magistrate provisional admission could have been granted to Miss Parveen Gul by ignoring the eligibility of admission which is required to be made on the basis of merit according to the Prospectus of Bolan Medical College and prevalent policy.
7. Since the matter pertains to admission in Bolan Medical College, therefore, the appeal arising out of this petition may be fixed at the earliest after having approval of his lordship the Hon'ble Chief Justice preferably in the second week of September, 2001 soon after the summer vacations.